November 28, 2018 - Issue: Vol. 164, No. 187 — Daily Edition115th Congress (2017 - 2018) - 2nd Session
UNANIMOUS CONSENT REQUEST--S. 2644; Congressional Record Vol. 164, No. 187
(Senate - November 28, 2018)
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[Pages S7153-S7155] From the Congressional Record Online through the Government Publishing Office [www.gpo.gov] UNANIMOUS CONSENT REQUEST--S. 2644 Mr. COONS. Madam President, I am proud to join the Senator from Arizona and the Senator from New Jersey on the floor today in calling for action on a bipartisan bill--a bill that has been crafted to protect our institutions and safeguard the rule of law in this country not just right now but for future Congresses and administrations as well. Today, we will be asking our colleagues to give the Special Counsel Independence and Integrity Act the consideration here on the floor of the Senate that it deserves. This bill would do something simple but powerful: It would codify Department of Justice regulations that prevent the removal of a special counsel without good cause. That might seem like a small detail, but it is important. Independence is required to ensure that a special counsel can do his or her job and find the facts. Our bipartisan bill would put this restriction in statute and give the special counsel a clear legal remedy. If removed without cause, the special counsel would have a 10-day period to take the case to a three- judge panel for expedited consideration. If the special counsel doesn't wish to contest his removal, it would proceed without interference. Both Republicans and Democrats recognize that removal of the current special counsel without a valid basis would be a significant, even a catastrophic event. It would be a constitutional crisis that would threaten the Presidency and the rule of law. We can work together to prevent a crisis. President Trump should be the first person to support this bill. He has raised concerns about oversight of the special counsel. He has accused the prosecutors of making partisan, politically motivated decisions. This act would ensure that regulations providing for supervision and oversight of the investigation are not just codified but strengthened. It would ensure that Congress gets a complete picture at the end of the investigation. My colleagues Senators Graham, Tillis, Booker, Grassley, and Feinstein were instrumental in crafting this balanced legislation, and it passed the Judiciary Committee by a strong bipartisan margin of 14 to 7, 7 months ago. The time to take up and pass this bill in the Senate is now. Some have questioned the need for this legislation. They have said the President would never fire Special Counsel Mueller, and I hope and pray they are right. I don't think it would be in President Trump's interest to remove the special counsel and certainly not in the interest of our country. The President has repeatedly, publicly, and directly attacked the special counsel and his investigation. Just yesterday, he called his investigation a ``phony witch hunt'' that is ``doing tremendous damage to our criminal justice system.'' The President has already fired the FBI Director and forced the resignation of the Attorney General, citing grievances related to this investigation in both cases. We have an Acting Attorney General not confirmed by the Senate, with no nominee in sight to conduct oversight of this investigation, which is unprecedented and not acceptable. This bill addresses threats not just to this special counsel but future special counsels. I would ask my colleagues who are holding back this bill to consider whether they may wish it were the law in a Democratic administration as well. We should all appreciate the ways in which this protects the rule of law. Let me close by quoting what my colleague Chairman Grassley said when he expressed his view back in April that this should be considered by the full Senate during our Judiciary Committee markup on the bill: In some ways, today's vote will say a lot about how each of us views our responsibilities as Senators. We took an oath to protect and defend the Constitution of the United States, but we're not judges or Presidents. We are stewards of the legislative branch. The Founders anticipated that we would wield the powers the Constitution affords us with great ambition so that we could effectively check the powers of the other branches. This bill certainly does that. I am confident that, if allowed to go to a vote, this bill would pass with more than 60 votes. History will judge us for how we work together to confront the challenges that face our Nation. The rest of the world is watching. It is important to take up and pass this bill. I now recognize my colleague, a cosponsor of this legislation, the Senator from New Jersey. Mr. BOOKER. Madam President, thank you very much. I want to thank my colleagues from Arizona and Delaware for being here today and for their leadership. I join them in asking the Senate to pass the Special Counsel Independence and Integrity Act by unanimous consent. The Special Counsel Independence and Integrity Act is a bipartisan bill. Again, I repeat, this is about the legislative branch asserting a commonsense check and balance on Presidential overreach. It is not divided along party lines; it is a bipartisan bill. [[Page S7154]] This bill is about ideals that we all are aligned with--independence, integrity, and the ability of the special counsel and future special counsels to do their job effectively, without interference from a President. This is a proactive bill aimed at ensuring that now and in the future, we have appropriate checks and balances in place to prevent a constitutional crisis. The bill is becoming more urgent. We know that there was an attack on our democracy. We know that there were and are foreign agents who attempted and are attempting to manipulate and undermine our democratic institutions. We need to understand what happened and how to prevent it from happening again and to hold those people accountable for their actions. The preservation of the special counsel investigation is indeed a matter of national security, but we know that the special counsel is in danger. We know he is in danger because even just yesterday, the President was again maligning and mischaracterizing the special counsel investigation. We know there is danger because just a few weeks ago, the President fired Attorney General Sessions and named Matthew Whitaker as the Acting Attorney General to oversee the Mueller investigation. We know that Acting Attorney General Whitaker has a history of criticizing and debasing the very investigation he is now responsible for overseeing. In 2017, he wrote an op-ed calling this investigation into our national security a ``witch hunt.'' This investigation must be allowed to continue without interference. This investigation must continue for our national security. We are all stewards of our democracy. It has been sustained by this ideal: that no one, not even the President of the United States, is above the law. We must act quickly to protect and secure this fundamental democratic ideal. This is a sobered, measured, bipartisan bill that will achieve those ends. I now yield to my colleague from Arizona. Mr. FLAKE. Madam President, I thank my colleague from New Jersey and my colleague from Delaware for working together on this issue. I rise today once again to speak in defense of Special Counsel Robert Mueller and to speak of the importance of the investigation he is leading and the attacks on our electoral system during the lead-up to the 2016 election. One wouldn't expect that such an investigation would be controversial, but somehow it warranted a tweet from the President earlier this week--one of several tweets--calling Special Counsel Mueller a ``conflicted prosecutor gone rogue'' and claiming that the ``$30 million witch hunt'' is doing nothing but ruining lives. To be clear, this is the same investigation that brought indictments for more than a dozen Russian nationalists for attempting to influence the 2016 election. Why shouldn't we be up in arms about that? Why does that warrant a tweet from the President--many tweets--trying to go after the special counsel? The findings of this investigation are too important to our national security and the well-being of our democratic institutions to be halted or watered down. Mr. Mueller must be able to preserve the work he has done by completing this very thorough investigation, and his findings must be made public. This legislation has been proposed to ensure this outcome. S. 2644, the Special Counsel Independence and Integrity Act, serves one purpose: to protect the integrity of the special counsel's investigation and to prevent the executive branch from inappropriately interfering in an independent investigation in the future. This legislation passed out of the Judiciary Committee in a bipartisan manner nearly 8 months ago. It has been awaiting action on the Senate floor ever since. It passed on May 26. Since that time, the Judiciary Committee has been busy. We have been busy here on the Senate floor. We have processed more than 50 judges and passed them here on the Senate floor. That is a good thing, but the priority now needs to be to protect the special counsel. Some of my colleagues have said that this legislation is not necessary because there hasn't been any indication that Mr. Mueller will be removed from office. But with the President tweeting on a regular basis, a daily basis, that the special counsel is conflicted, that he is leading the so-called 12 angry Democrats, and demeaning and ridiculing him in every way, I believe to be so sanguine about the chances of him being fired is folly for us. We have already seen the forced resignation of the Attorney General the day after the election. It is clear, therefore, that something has to be done to protect Mr. Mueller's investigation. Let me just say it wasn't just that the Attorney General was fired; it is that the investigation--or oversight for the investigation--was taken from the Deputy Attorney General, where it properly belonged and where it was before. It was taken from him and given to somebody who is in an acting capacity--somebody who has not been confirmed by the Senate. Should we in the Senate be OK with that? I would argue no, we can't be. That is why a few weeks ago my colleague from New Jersey and my colleague from Delaware came to the Senate floor to ask unanimous consent to bring this bill to the floor. After our efforts were blocked by an objection, we promised to come to the floor again and again, and that is why we are here today. We will continue to do so until this vital investigation is completed. So I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 393, S. 2644; I further ask that the committee-reported substitute amendment be agreed to, the bill, as amended, be considered read a third time and passed, and that the motions to reconsider be considered made and laid upon the table. The PRESIDING OFFICER. Is there objection? The Senator from Utah. Mr. LEE. Madam President, reserving the right to object, I ask unanimous consent for 2 minutes to articulate the basis of my concern. The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered. Mr. LEE. Madam President, for reasons articulated by Justice Scalia in his classic opinion in Morrison v. Olson, the prosecutorial authority of the United States belongs in the Department of Justice. The Department of Justice answers to the President of the United States. Its principal officers consist of people appointed by the President, serving at the pleasure of the President, after being confirmed by the U.S. Senate. This is a fundamental component of our liberty. The separation of powers protect us. That doesn't mean we are always going to agree with what every President in every administration does. But as Justice Scalia explains, we cannot convert an office like this one--an office like the previously existing Office of Independent Counsel--without creating a de facto fourth branch of government, fundamentally undermining the principle of separation of powers that is so core to our liberty. On that basis, I object. The PRESIDING OFFICER. Objection is heard. The Senator from Delaware. Mr. COONS. Will my colleague from Utah consider a question? Mr. LEE. I am very late for another meeting, but, yes, I will, because I like my friend from Delaware. Mr. COONS. Was Justice Scalia's dissent in Morrison v. Olson a majority opinion? Mr. LEE. No, it was not. At the time it was written, it was somewhat novel; it was somewhat new. Since then, it has become a widely adopted view--a view adopted by people across the political spectrum, regardless of their political ideology. I challenge every one of you to read it. It is right. Mr. COONS. Madam President, will the Senator yield for another question? Mr. LEE. I am very late. Mr. COONS. Let me just conclude by saying that the DC Circuit reconsidered this issue just this year and in their decision said that Morrison remains valid and binding precedent. I know we have other urgent business to move to, but I will simply say that I am grateful for the work of my colleague from Arizona. Despite the objection of my colleague from Utah, I am convinced this is an important bill that we should continue to bring forward on the floor of the Senate. Thank you. The PRESIDING OFFICER. The question is, Will the Senate advise and consent to the Kelley nomination? [[Page S7155]] Mr. WICKER. I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. The clerk will call the roll. The senior assistant bill clerk proceeded to call the roll. The result was announced--yeas 62, nays 38, as follows: [Rollcall Vote No. 248 Ex.] YEAS--62 Alexander Barrasso Blunt Boozman Burr Capito Casey Cassidy Collins Corker Cornyn Cotton Crapo Cruz Daines Donnelly Enzi Ernst Fischer Flake Gardner Graham Grassley Hatch Heitkamp Heller Hoeven Hyde-Smith Inhofe Isakson Johnson Jones Kennedy King Kyl Lankford Lee Manchin McCaskill McConnell Moran Murkowski Nelson Paul Perdue Portman Risch Roberts Rounds Rubio Sasse Schatz Scott Shaheen Shelby Sullivan Tester Thune Tillis Toomey Wicker Young NAYS--38 Baldwin Bennet Blumenthal Booker Brown Cantwell Cardin Carper Coons Cortez Masto Duckworth Durbin Feinstein Gillibrand Harris Hassan Heinrich Hirono Kaine Klobuchar Leahy Markey Menendez Merkley Murphy Murray Peters Reed Sanders Schumer Smith Stabenow Udall Van Hollen Warner Warren Whitehouse Wyden The nomination was confirmed. The PRESIDING OFFICER (Mr. Tillis). Under the previous order, the motion to reconsider is considered made and laid upon the table and the President will be immediately notified of the Senate's action. ____________________